I provide commentary on political economy, police and prosecutorial abuse, and whatever else might come to mind.
Let justice roll down like waters,
and righteousness like an ever-flowing stream. Amos 5:24 (ESV)

Wednesday, November 30, 2011

When I was in journalism school about 40 years ago, I learned about the early American journalist John Peter Zenger, who was acquitted of criminal libel in 1735 by a jury in Philadelphia. It was clear that Zenger had broken the law -- although a law that would be considered tyrannical -- but jurors decided to acquit him anyway to show their displeasure with the law and with the authorities that brought the charges.

The principle was jury nullification, and it has served Americans well for centuries. Juries in the North refused to convict people under the awful Fugitive Slave Law, and juries have nullified when they believed prosecutors were hounding someone for no good reason.

(Unfortunately, juries also have nullified for bad reasons such as the not guilty verdicts in the South during the Civil Rights Era when whites were accused of murdering blacks. Likewise, juries in Herrin, Illinois, refused to convict union workers who executed 22 non-union workers during a coal strike in 1922.)

The feds have charged Julian P. Heicklen, a 79-year-old retired chemistry professor from Penn State University, claiming he is violating laws against jury tampering. I must admit that this is a "creative" interpretation of the law that was written to keep people with vested interests in the outcome of a verdict from bribing or threatening jurors to vote in a certain way.

Heicklen has done nothing of the sort, but that does not stop federal prosecutors from trying to stretch the law into oblivion. One would hope that Judge Kimba Wood, who is hearing the case, will dismiss it, but Wood demonstrated without a doubt 20 years ago when sentencing Michael Milken for a series of non-crimes that she did not understand the law. Thus, I must admit I have no confidence in Wood doing anything but bow down to the will of federal prosecutors.

According to the New York Times, the activity in which Heicklen was involved consisted of standing

...on a plaza outside the United States Courthouse in Manhattan, holding a “Jury Info” sign and handing out brochures that advocate jury nullification, the controversial view that if jurors disagree with a law, they may ignore their oaths to follow it and may acquit a defendant who violated it.

He has not dealt with jurors individually nor has he tried to influence them in any particular case, which is exactly what the jury tampering laws were supposed to prohibit. By charging Heicklen, however, the feds are moving into new legal territory, yet another "creative legal theory" that federal prosecutors have loosed upon this country as they seek to criminalize legal behavior.

The federal prosecutors clearly are making things up as they go along. The NYT writes:

But now prosecutors are offering their first detailed explanation for why they charged Mr. Heicklen, arguing in a brief that his “advocacy of jury nullification, directed as it is to jurors, would be both criminal and without Constitutional protections no matter where it occurred.”

“His speech is not protected by the First Amendment,” prosecutors wrote.

“No legal system could long survive,” they added, “if it gave every individual the option of disregarding with impunity any law which by his personal standard was judged morally untenable.”

Not only do federal prosecutors want to deny this man his right of free speech, but they also are seeking to deny him a jury trial:

Mr. Heicklen, who could face a six-month sentence if convicted, has asked for a jury trial. Ms. (Rebecca) Mermelstein (the lead federal prosecutor), opposing that demand, cited as one reason Mr. Heicklen’s ardent stance that juries should nullify. He would probably “urge a jury to do so in a case against him,” she wrote.

In other words, Heicklen should be denied his right to trial by jury because (horrors) a jury might acquit him. If the feds cannot have the results they want, then the Constitution and the very Rule of Law should be abandoned so that prosecutors can win.

The problem in this country is NOT jury nullification. No, the real problem is that juries too often are willing to defer to prosecutors because they believe that is what they are supposed to be doing, or they reach verdicts out of convenience.

When juries use their right of nullification to deal with what they believe to be a wrongful or malicious prosecution, they do so out of a sense of principle and belief in a Higher Law. That federal prosecutors are trying to destroy that right tells us that nothing scares the feds more than decent Americans acting out of the sense of right and wrong that government employees in the "justice" system abandoned long ago.

In American "justice," principle and right and wrong is seen as a foreign object in the bloodstream, something that government demands be eradicated at all costs. In the Heicklen case, we get a sense that prosecutors today are so emboldened and so protected that they will openly advocate people have their rights taken away -- in the name of "doing justice," of course.

...the 500-page report by the investigator, Henry F. Schuelke, recommends that none of the Justice Department officials involved in the case be prosecuted for criminal contempt of court because the judge who presided over the trial, Emmet G. Sullivan, of Federal District Court in Washington, did not issue an order specifically instructing prosecutors to obey the law by turning over any exculpatory evidence. (emphasis mine)

The report admitted the prosecution was “permeated by the systematic concealment of significant exculpatory evidence which would have independently corroborated his defense and his testimony, and seriously damaged the testimony and credibility of the government’s key witness.” In other words, the Brady violations -- and these clearly fell into the Brady category -- were deliberate. Prosecutors wanted a conviction and were willing to lie to get it.

All of the prosecutors are regularly briefed during mandatory training about Brady requirements of turning over all exculpatory evidence and sharing files. As law school graduates, they also had Brady instruction in classes on criminal law. To put it another way, they did NOT have to be instructed in the requirements of Brady; they already knew, but chose NOT to obey.

This is breathtaking, but maybe I should not be surprised that Official Washington is so contemptuous of everyone else but themselves. The courts have ruled that you and I (if we are not government lawyers or judges) are required to know by heart every jot and tittle of the law, for the courts have declared, "Ignorance of the law is no excuse."

In this situation, however, they are not even saying that prosecutors were ignorant of the law. Instead, the judge who wrote the report is saying that because prosecutors were not reminded of what they already were supposed to know, they should not face criminal contempt charges.

What about the rest of us. Well, the courts have ruled that under federal law, the mens rea doctrine -- the people charged with crimes intended to break the law -- can be ignored, which means that you can I can go to prison for breaking laws we did not know existed AND even though we did not intend to break the law and might have thought we were obeying it.

Yet, prosecutors who knowingly lied and hid evidence, prosecutors who are regularly briefed and trained in the law, do not have to obey it, or at least do not have to worry about being charged with lawbreaking as long as a judge does not remind them of what they already know. This is the very definition of tyranny.

The video of the alleged assault is shown in this link, but although the images that I saw were not very clear, it is clear that if anyone is being assaulted in this video, it is Carlton, not the guard. (I must admit that I was brought up in an era that men who physically attacked women -- and especially women smaller than them -- were considered to be utter scum. Today, police beat up women all the time and are called "heroes.")

This is a very, very disturbing case on many levels. First, Casilly piled up 28 felony charges against Carlton, having her held on $10 million bond, and then he suddenly dropped all of them, which tells me that he had no evidence at the beginning and simply lied to a judge and grand jury. Second, while she was in jail, Casilly made sure her child was taken away from her and put into foster care. The child then died while in foster care, and this account explains how Casilly made sure that the officials at the Harford County Detention Center furthered the psychological torture of this woman:

Valerie was informed of her baby's death while she was in jail, but the prosecutor arranged that the Chaplain was not permitted to perform this duty; instead it was done by an employee of the Sheriff's office who brutally announced that the baby was dead, and then had Valerie strapped into a medieval torture de!=vice, called a "restraint chair," so that she choked on her own mucus as she wept and tried to pray for her dead baby. The Sheriff's department claimed, in writing, that Valerie was "talking in tongues" because she was praying in Hebrew. An employee of the Sheriff's Department apparently told this nonsense to the ex-husband's family, who spread the rumor that Valerie was insane because of the way she responded to the death of her baby.

So, as you can see, this case is far from over. Once again, we see a prosecutor who knows he will face no sanctions in Maryland for his misconduct. We also see the system turned in its full fury against someone who is not a criminal.

Like it or not, this is the country in which we live, and from what I can see, Americans are quite happy to accept what is happening -- as long as it happens to someone else and not themselves.

Once again, the great Harvey Silverglate lays out the case in simple but eloquent prose, noting that the U.S. Supreme Court once again has ensured that prosecutors that flaunt the law, suborn perjury, hide evidence, and lie are protected by the pernicious doctrine of "absolute immunity."

Saturday, November 12, 2011

Here is a piece I had on Lew Rockwell's site in which I criticize Pennsylvania Attorney General Linda Kelly. I don't expect agreement from readers, but nonetheless I do believe that Kelly has turned this thing into something out of control.

As I see it, there is no chance whatsoever of Sandusky being able to receive a fair trial (which I suspect was part of Kelly's plan), and by seeking questionable indictments and making inflammatory statements, she has made things much worse than they should have been.

Jerry Sandusky, 67, the Penn State defensive coordinator during two of the team’s national championship years before retiring in 1999, was arrested Saturday on charges of sexually abusing eight boys across a 15-year period.

Two top university officials — Gary Schultz, the senior vice president for finance and business, and Tim Curley, the athletic director — were charged with perjury and failure to report to authorities what they knew of the allegations, as required by state law.

This is the result of an investigation that has been going on for a long time. Furthermore, the investigators were not making outrageous statements (unlike what we saw in the Duke Lacrosse Case and the Tonya Craft Case, where in both situations, police and prosecutors lied and made up things as they went along), at least while the investigations were occurring.

Unfortunately, after the arrests, Pennsylvania Attorney General Linda Kelly declared that Sandusky was: "a sexual predator who used his position within the university and community to repeatedly prey on young boys." She also declared about the two PSU officials:

It is also a case about high-ranking university officials who allegedly failed to report the sexual assault of a young boy after the information was brought to their attention, and later made false statements to a grand jury.

...except for statements that are necessary to inform the public of the nature and extent of the prosecutor's action and that serve a legitimate law enforcement purpose, refrain from making extrajudicial comments that have a substantial likelihood of heightening public condemnation of the accused and exercise reasonable care to prevent investigators, law enforcement personnel, employees or other persons assisting or associated with the prosecutor in a criminal case from making an extrajudicial statement that the prosecutor would be prohibited from making under Rule 3.6 or this Rule.

In other words, Jerry Sandusky is CHARGED with the crimes; he has not been convicted, and the AG cannot call him a "predator" outright. (Not that this matters, since as a matter of course, prosecutors rarely are punished for breaking Rules of Conduct from their various states, as they have seized control of the judicial system.)

Furthermore, as this Wall Street Journal article points out, neither Curly nor Schultz are what the law calls "first responders" to allegations of child molestation. In other words, claiming that they legally were responsible for reporting Sandusky is something that AG Kelly should NOT be saying, given that she actually is supposed to know Pennsylvania state law on these matters. (However, while you and I are legally supposed to know EVERY LAW in EVERY STATE and the federal government, as well as every single regulation, the courts have exempted judges, prosecutors, and the police from that requirement. I'm not kidding. In other words, we already have legalized tyranny.)

That is why Kelly had the men charged with perjury, as she knew she did not have a legal case against them, but she is going to claim they lied to the grand jury. Using those standards, she could have also charged PSU coach Joe Paterno with crimes, but in so doing would have put herself out on a limb, given Paterno's status not only as the winningest college football coach but also as someone known for following the rules.

As I said last April, the status of Penn State football and the status of the coaches at PSU has served as a braking mechanism for investigators, who usually are more likely to be charging ahead, making outrageous statements, and trying to coerce witnesses. They knew they could not do that in this situation and get away with it, which means they probably did a much more effective job than they normally might have done.

At approximately 9:30 p.m. on March 1, 2002, a Penn State graduate assistant entered what should have been an empty football locker room. He was surprised to hear the showers running and noises he thought sounded like sexual activity, according to a Pennsylvania grand jury “finding of fact” released Saturday.

When he looked in the shower he saw what he estimated to be a 10-year-old boy, hands pressed up against the wall, “being subjected to anal intercourse,” by Jerry Sandusky, then 58 and Penn State’s former defensive coordinator. The grad assistant said both the boy and the coach saw him before he fled to his office where, distraught and stunned, the grad assistant telephoned his father, who instructed his son to flee the building.

This isn't Joal Henke testifying to something he "just remembered this morning" about something that clearly was a lie; this is a graduate assistant who probably had dreams of being a college coach allegedly witnessing something that not only was stunningly awful, but also would have been a potential roadblock to his being able to get a job in coaching ranks, given the expressed prohibitions of "ratting out" other coaches. As the article states, he told Paterno, who then says he told PSU athletic director Curly.

Was this the proper course of action? All of the articles (and they are legion), including ones here, here, and here, say that Paterno and Curly should have gone to the police immediately.

As noted earlier, the law is unclear. However, I would like to go a step further and say that given what we have seen in the past regarding how police and prosecutors deal with allegations of child molestation, I also would be hesitant to go to the police unless I knew for certain. There are too many instances in this country in which people who have talked to the police either find themselves in legal trouble or are framed by cops and prosecutors.

In Tonya Craft's situation, it is absolutely clear that Sandra Lamb and Dewayne Wilson worked hand-in-glove with Tim Deal and Chris Arnt to out-and-out frame Craft, and when those entrusted with enforcing the law are most likely to lie, then one cannot trust ANYONE in law enforcement to do the right thing. Let me repeat my point: Police and prosecutors in this country already have proven beyond a doubt that they are untrustworthy and are willing to frame innocent people, so going to the police about anything is a very risky thing.

For all of the chest beating about what Joe Paterno SHOULD have done, I would say that not one of the journalists or other pundits was in his shoes, and to say that he was "covering up" something this awful is not warranted. I have no idea what happened, and neither do they.

That being said, however, I do believe that the police and prosecutors have a strong case. When I first heard the rumors, I thought it might be a situation of parents and children wanting to extort money from Sandusky and his organization, The Second Mile. The account of the grad student, however, changes my opinion.

How this will turn out, I don't know. Journalists always rush to judgment and they always will. However, if the police and prosecutors have the case against Sandusky they claim, then this will have an inevitable conclusion of finding Sandusky guilty. As for Curly and Schultz, I don't know.

I will add this, however. Given that prosecutors -- and this includes Kelly -- often use witnesses they KNOW are lying (and never charged with perjury), it seems like overkill to me to charge these PSU officials with perjury. Prosecutors are willing to use perjury as a tool to help gain wrongful convictions -- that we know for a fact -- and for them to turn around and use it in this way simply is wrong.

This is a compelling story, and I think Radley gets it right. Texas prosecutors for years have been able to get away with the worst kind of misconduct (and never receive even a smidgen of punishment) over the years.

About Me

I teach economics at Frostburg State University in Frostburg, Maryland. We are located on the Allegheny Plateau, and we have cool summers and tough winters.
I am the single father of five children, four of them adopted from overseas and I have two grandchildren. My family and I are members of Faith Presbyterian Church (PCA).